In Re McNeer

California Court of Appeal Sep 1, 1959 No. Crim. 2934Published

Before: Van Dyke

AI Brief

AI-generated · verify before citing

Holding. The court held that a conviction for a lesser degree of a crime constitutes an acquittal of higher degrees, and that a subsequent decision establishing this principle applies retrospectively to invalidate a prior conviction for a higher degree obtained in violation of the constitutional protection against double jeopardy.

Issues

Whether the Supreme Court's decision in Gomez v. Superior Court regarding double jeopardy applies retrospectively to invalidate a prior conviction.
Whether a defendant convicted of first-degree murder after a retrial for second-degree murder is entitled to habeas corpus relief based on double jeopardy.
Whether a trial court, upon granting habeas corpus, should discharge the prisoner or remand for resentencing on the lesser included offense.

Disposition. reversed

Quotations verified verbatim against the opinion

“The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is, not that the former decision is bad law, but that it never was the law”

“The judgment sentencing respondent to life imprisonment, insofar as it rested upon a conviction of first degree murder, was void as being in excess of jurisdiction on the face of the record.”

VAN DYKE, P. J.

Petitioner, under an information charging murder, was convicted in the Los Angeles County Superior Court of murder of the second degree. Judgment was pronounced against him November 22, 1934. Petitioner appealed, the judgment was reversed, and the cause was remanded for retrial. Petitioner interposed pleas of once in jeopardy and former acquittal as to murder in the first degree. On retrial the court directed the jury to bring in verdicts adverse to petitioner on the special pleas. Petitioner was found guilty of murder in the first degree, and was sentenced to imprisonment for life. He moved for a new trial and when his motion was denied he appealed, asserting in both

[532]

proceedings that the court erred in directing verdicts against him on his special pleas, arguing that the court was without jurisdiction to try him for any degree of murder higher than second degree. These contentions were disallowed and the judgment was affirmed.

(People

McNeer,

14 Cal.App.2d 22 [57 P.2d 1018].) Petitioner applied for a hearing before the Supreme Court and hearing was refused. On July 17, 1958, in the case of

Gomez

Superior Court,

50 Cal.2d 640 [328 P.2d 976], the Supreme Court ruled that where a person charged with a certain degree of a crime had been convicted on trial of a lesser degree the conviction of the lesser degree was an acquittal of all higher degrees of that crime; that he could not constitutionally again be prosecuted for a higher degree on retrial following a reversal on appeal of conviction of the lower degree because to do so would, as to the higher degree, place him in jeopardy a second time. On learning of this decision petitioner applied to the Superior Court in Sacramento County for a writ of habeas corpus; and, after a hearing, the court granted the writ and ordered petitioner discharged from further custody. The People have appealed.

It appears our courts have consistently held that a conviction of a crime necessarily included in another crime bars a prosecution for that other. Thus, as held in

In Re McNeer

AI Brief

VAN DYKE, P. J.

More from California Court of Appeal

Related research

AI Brief